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2024 (1) TMI 174
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....nted. 2. The present appeals arise from two orders of the Division Bench of the High Court of Judicature at Allahabad "High Court" dated 4 April 2023 and 19 April 2023. "Impugned Orders" The Impugned Orders have given rise to significant questions about the separation of powers, the exercise of criminal contempt jurisdiction, and the practice of frequently summoning government officials to court. 3. By its order dated 4 April 2023, "First Impugned Order" the High Court directed the Government of Uttar Pradesh to inter alia notify rules proposed by the Chief Justice of the High Court pertaining to 'Domestic Help to Former Chief Justices and Former Judges of the Allahabad High Court' by the next date of hearing. The High Court further directed certain officials of the Government of Uttar Pradesh to be present before the court on the next date if the order was not complied with. 4. The State of Uttar Pradesh moved an application before the High Court to seek a recall of the Order dated 4 April 2023 highlighting legal obstacles in complying with the directions of the High Court. By its order dated 19 April 2023, "Second Impugned Order" the High Court held that the recall appli....
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....r Pradesh, noting that it had already framed a scheme in accordance with the Court's directions. The Court further held that a slight variation from the yardstick in the Andhra Pradesh scheme is permissible keeping in mind the local conditions and directed that states that are paying less than the yardstick, shall consider upward revision at the 'appropriate stage and time'. The court held: "State of Meghalaya, Manipur, Maharashtra, Goa, Mizoram, Punjab, Tamil Nadu, Karnataka, Andhra Pradesh, Sikkim, Arunachal Pradesh, Telangana, Uttar Pradesh, Madhya Pradesh, Tripura, Government of NCT of Delhi, Haryana, Uttarakhand, Rajasthan, Chhattisgarh, Kerala, Gujarat and Assam The counter-affidavits/responses filed on behalf of each of the aforesaid States indicate that a scheme has been framed in accordance with the directions of the Court. While some of the States are paying more than what the State of Andhra Pradesh (Adopted as the yardstick by the Court) is paying by way of post-retirement allowances some others are affording lesser amount(s). A little variation from the yardstick can be understood in terms of the flexibility contemplated in paragraphs 33 and 34 of the....
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....l appointment: The engagement of a Domestic Help under Rule 6 shall be on a contractual basis and will be available until the former Chief Justice or former Judge is entitled to the benefit of the facility under Rule 5 and until the Domestic Help performs duties satisfactorily subject to the certification of the former ChiefJustice or former Judge. 8. Reimbursement: Upon engagement, the monthly remuneration payable to the Domestic Help shall be reimbursed by the High Court to the former Chief Justice or former Judge after completion of the month in each month. 9. Wages: The wages to be reimbursed by the High Court to the former Chief Justice or former Judge for the engagement of the Domestic Help shall be equivalent to the salary payable to a Class-IV employee of the High Court in the grade of a peon or equivalent at the minimum of the scale of pay inclusive of dearness allowance. ..." (emphasis supplied) 10. In the above factual background, the High Court heard the writ petition, summoned officials of the Government of Uttar Pradesh and passed various orders, including the two Impugned Orders. The orders of the High Court passed before the Im....
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....lay by the State Government in notifying the Rules and revising the post-retiral benefits granted to former judges of the High Court. The High Court stated that it is "constrained to summon the Finance Secretary, Government of UP and all the associated Officers dealing with the file along with the Principal Secretary (Law), Government of UP to appear along with the records on the next date fixed." 15. On 4 April 2023, the High Court passed the First Impugned Order. As directed, the Special Secretary, Finance and Principal Secretary, Law, Government of Uttar Pradesh were present. The High Court noted the submission by the Principal Secretary, Law that the matter was placed before the Finance Department on six occasions, but approval was not accorded. On the other hand, the Secretary, Finance submitted that the Rules are beyond the competence of the Chief Justice and do not fall within the ambit of Article 229 of the Constitution. The High Court observed that the objection with regard to the competence of the Chief Justice was being raised for the first time before the High Court. The High Court observed that: "5. On perusal of the record with the assistance of the learne....
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....s as proposed by the High Court shall be notified by amending/incorporating/superceeding the Government Order dated 3 July 2018, forthwith; 2. The Finance Department would accord approval within a week thereafter; 3. The notification of the Government Order and the approval, thereof, shall be placed on record on the date fixed; 4. In the event the order is not complied, Additional Chief Secretary, Finance and the officers present today shall appear on the date fixed." (emphasis supplied) 18. The State of Uttar Pradesh filed a recall application before the High Court on 19 April 2023 seeking a recall of the First Impugned Order on the grounds that: a. The High Court did not have the power to pass the above directions; b. The rules do not fall within the ambit of Article 229 of the Constitution; c. The direction for the Rules to be notified and the Finance Department to accord approval thereafter cannot be complied with as the concurrence/advice of the Finance Department must be taken before notifying the rules; and d. Only the Parliament and the Union government are competent to frame legislation/rules pertai....
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....d by the Law Department was not approved by the Finance Department till date. The approach of the officers of the Finance Department is writ large, that the proposal submitted by the High Court, would not be complied and in their overzealous approach and adamant attitude are opposing compliance of the writ court order without any valid basis. 32. In the circumstances, having regard to the averments made in the affidavit and the conduct of the officers suppressing material facts and misleading the Court, prima facie, have committed criminal contempt of the Court." (emphasis supplied) 20. The High Court directed that the officials present in the court, the Secretary (Finance) and the Special Secretary (Finance) be taken into custody and produced before the Court on the next day for framing of charges. Further, the Court issued bailable warrants against the Chief Secretary and the Additional Chief Secretary (Finance) to ensure their presence before the Court on the next day. 21. The above Orders dated 4 April 2023 and 19 April 2023 have been challenged by the State of Uttar Pradesh by the present appeal. By an interim order dated 20 April 2023, this Court staye....
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....for the purpose. The proviso to the Article mandates that the rules made under Article 229(2) require the approval of the Governor of the State, in so far as they relate to salaries, allowances, leave or pensions. The provision reads as follows: 229. Officers and servants and the expenses of High Courts. - (1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct: Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission. (2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose: Provided that the rules made under this clause shall, so far as they r....
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....tate had already framed a scheme for post-retiral benefits. The Court held that slight variations from the scheme adopted in Andhra Pradesh were permissible and flexibility was contemplated in P Ramakrishnan Raju (supra) for states to frame their respective schemes. Further, the court directed that "states where the allowances paid are lesser than the State of Andhra Pradesh, shall consider the necessity of an upward revision of such allowances at the appropriate stage and time." 28. There is no iota of doubt that in the above judgements, this Court directed the state governments to frame schemes for post-retiral benefits. The above judgements of this Court did not grant the Chief Justices of High Courts, acting on the administrative side, the power to frame rules about post-retiral benefits for former judges that must mandatorily be notified by the State Governments. Further, the Court recognized the need for flexibility and granted state governments the leeway to duly account for local conditions. 29. Further, the High Court's conduct on the judicial side in the Impugned Orders was also erroneous. The High Court, acting under Article 226 of the Constitution, cannot usurp th....
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....scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner; 32. The Act makes a clear distinction between two types of contempt. 'Wilful disobedience' of a judgement, decree, direction, order, writ, or process of a court or wilful breach of an undertaking given to a court amounts to 'civil contempt'. On the other hand, the threshold for 'criminal contempt' is higher and more stringent. It involves 'scandalising' or 'lowering' the authority of any court; prejudicing or interfering with judicial proceedings; or interfering with or obstructing the administration of justice. 33. In the second Impugned Order, the High Court held that the actions of the officials of the Government of Uttar Pradesh constituted criminal contempt as there was no "valid reason" to not comply with the earlier Order. Even if the High Court's assessment is assumed to be correct, non-compliance with the First Impugned Order could at most, consti....
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....ly extraordinary circumstances. 37. Such summary procedure, as has been held by this Court, in Leila David v. State of Maharashtra, (2009) 10 SCC 337 can only be invoked in exceptional cases, such as instances where: "36. ....after being given an opportunity to explain their conduct, not only have the contemnors shown no remorse for their unseemly behavior, but they have gone even further by filing a fresh writ petition in which apart from repeating the scandalous remarks made earlier, certain new dimensions in the use of unseemly and intemperate language have been resorted to further denigrate and scandalize and overawe the Court. This is one of such cases where no leniency can be shown as the contemnors have taken the liberal attitude shown to them by the Court as license for indulging in indecorous behavior and making scandalous allegations not only against the judiciary but those holding the highest positions in the country." No such situation prevailed in the present case. Therefore, the invocation of criminal contempt and taking the government officials into custody was not warranted. IV. Summoning of Government Officials before Courts 38. Before concludi....
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....ar Pradesh on affidavit or hearing the Additional Advocate General present in the court, the High Court repeatedly summoned government officials. The government was also directed to notify the Rules based on a "no objection" from the officials of the Finance Department purportedly made before the High Court, which is now contested by the state. Such situations can be avoided in cases where submissions on affidavit can be sought and the law officers of the Government are present in court, with instructions. The issuance of bailable warrants by the High Court against officials, including the Chief Secretary, who was not even summoned in the first place, further indicates the attempt by the High Court to unduly pressurise the government. 43. This Court in State of Uttar Pradesh v. Manoj Kumar Sharma, (2021) 7 SCC 806 frowned upon the frequent summoning of government officials "at the drop of a hat". This Court held: "17. A practice has developed in certain High Courts to call officers at the drop of a hat and to exert direct or indirect pressure. The line of separation of powers between Judiciary and Executive is sought to be crossed by summoning the officers and in a way ....
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....the courts. Constantly summoning officials of the government instead of relying on the law officers representing the government, runs contrary to the scheme envisaged by the Constitution. 45. Enriched by the valuable insights shared in discussions with my esteemed colleagues Justice J.B. Pardiwala and Justice Manoj Misra, we have framed a Standard Operating Procedure (SOP) specifically addressing the appearance of Government Officials before the courts. At its core, this SOP emphasizes the critical need for courts to exercise consistency and restraint. It aims to serve as a guiding framework, steering courts away from the arbitrary and frequent summoning of government officials and promoting maturity in their functioning. The SOP is set out below: ------------------------------------------------------------------------------------------------------------------------- Standard Operating Procedure (SOP) on Personal Appearance of Government Officials in Court Proceedings This Standard Operating Procedure is applicable to all court proceedings involving the government in cases before the Supreme Court, High Courts and all other courts acting under their re....
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....f the concerned official at least one day before the scheduled hearing 2.3 When the personal presence of an official is directed, reasons should be recorded as to why such presence is required. 2.4 Due notice for in-person appearance, giving sufficient time for such appearance, must be served in advance to the official. This would enable the official to come prepared and render due assistance to the court for proper adjudication of the matter for which they have been summoned. 3. Procedure during the personal presence of government officials: In instances where the court directs the personal presence of an official or a party, the following procedures are recommended: 3.1 Scheduled Time Slot: The court should, to the extent possible, designate a specific time slot for addressing matters where the personal presence of an official or a party is mandated. 3.2 The conduct of officials: Government officials participating in the proceedings need not stand throughout the hearing. Standing should be required only when the official is responding to or making statements in court. 3.3 During the course of proceedings, oral remarks with the....
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....ideo conferencing. 5.5 Addressing Non-Compliance: The court should evaluate instances of non-compliance, taking into account procedural delays or technical reasons. If the original order lacks a specified compliance timeframe, it should consider granting an appropriate extension to facilitate compliance. 5.6 When the order specifies a compliance deadline and difficulties arise, the court should permit the contemnor to submit an application for an extension or stay before the issuing court or the relevant appellate/higher court. 46. In a nutshell, the conclusions reached in this Judgement are as follows: a. The High Court did not have the power to direct the State Government to notify Rules proposed by the Chief Justice pertaining to post-retiral benefits for former Judges of the High Court. The Chief Justice did not have the competence to frame the rules under Article 229 of the Constitution. Further, the High Court, acting on the judicial side, does not have the power to direct the Government to frame rules proposed by it on the administrative side. b. The power of criminal contempt could not be invoked by the High Court against officials of ....